Friday, February 25, 2011

Loons Over Manitoba: Inventing Reasons from Whole Cloth to be Outraged Over the Lenient Sentence of a Rapist

Feminists in Manitoba are staging a gender passion play well in advance of Holy Week in protest of an earnest judge's lenient sentence of a rapist. "Victim blaming!" "Sexist!" "Misogyny!" they shout, as they trip over one another to see who can bray their righteous indignation the loudest -- simply because the judge has the radical belief that “not all guilty people are morally culpable to the same level."
The judge, Queen’s Bench Justice Robert Dewar, found that, in an alcohol-fueled encounter, Kenneth Rhodes "misunderstood signals" from the accuser to mean that she wanted sex, so he proceeded to have intercourse, as it turned out, against her will. The judge called him a “clumsy Don Juan” and convicted him of rape. Then, the judge sentenced him to a two-year conditional sentence. The Crown wanted him to serve at least three years behind bars, and the feminist community no doubt wanted lots and lots more than that, and possibly the forcible removal of a matching set of body parts.

The feminists' screeching overreaction to this sentence underscores in vivid, startling terms how completely divorced from common sense they've become when it comes to the subject of rape.

Men and women do not exchange written consent forms before proceeding with intercourse. A woman's secret, undisclosed intentions, whims, and desires have no bearing on the question of whether there was consent. The only thing that matters is her outward manifestations of assent, which may be expressed in an infinite variety of ways, both verbally and non-verbally, and as shown by all the surrounding circumstances.

Most lawyers are acutely aware of how oral and written communications often are subject to differing interpretations. Legion are the lawsuits to determine whether a legally operative contract was formed from a given set of such communications. When it comes to sex, where communications are typically far less articulate, it is amazing that the parties are typically "on the same page." Unfortunately, sometimes, they are not, and this is one of those unfortunate cases.

Mr. Rhodes counsel, Derek Coggan, told the court that it’s clear alcohol was a factor for both his client and the accuser in terms of their ability to make good judgments. He said Rhodes never threatened the woman, didn’t have a weapon and was simply “insensitive to the fact (she) was not a willing participant.”

In handing down the sentence, the judge found that Mr. Rhodes subjectively misinterpreted the accuser's outward manifestations and the surrounding circumstances to mean that she consented to intercourse. The judge seems to have believed that although Mr. Rhodes' interpretation was unreasonable (hence the rape conviction), it was nevertheless sincere and not malicious.

Let us get one thing straight: I am not a Canadian lawyer, but there is a "reasonableness" component to Canada's rape laws when it comes to consent. According to section 273.2(b) of Canada's Crimina Code, the accused must show that he took reasonable steps in order to ascertain the complainant's consent. Apparently, Mr. Rhodes did not act reasonably when he had sex with the woman. It was rape. So why did the judge hand down a lenient sentence? Because the judge determined that Mr. Rhodes stupidly interpreted the woman's behavior to invite sex. The judge did not condone such misinterpretation; he simply handed down a sentence based on the evidence that was presented to him.

In handing down the sentence, the judge examined the surrounding circumstances. Mr. Rhodes and a friend met the 26-year-old woman and her girlfriend earlier that night outside of a bar under what the judge called “inviting circumstances.” The accuser proceeded to engage in flirtatious behavior with Mr. Rhodes. The accuser and her friend made their intentions publicly known "that they wanted to party.” The judge noted the women spoke of going swimming in a nearby lake that night “notwithstanding the fact neither of them had a bathing suit.” The foursome left the parking lot in a vehicle, headed into the woods where Mr. Rhodes began making sexual advances toward the accuser, who initially rejected him but later returned his kisses. All in all, the accuser gave out signs that “sex was in the air.”

In his most controversial observation, the judge had the audacity to note what the accuser was wearing -- tube tops with no bra, high heels and plenty of makeup. The feminists are having a conniption over that observation, characterizing it as "victim blaming" -- as if her attire somehow is not and cannot be part of all the surrounding circumstances, and as if the judge based his sentencing decision solely on it. To these feminists, presumably the only evidence probative of consent would be the accuser's verbal and enthusiastic "yes!" even though that's not the law anywhere. If the woman was wearing a nun's habit, I am quite certain the prosecution would have made much of that, and properly so, even though it is possible that women dressed in nuns' habits are capable of consenting to sex.

But, of course, the judge didn't focus solely on the woman's attire even though that's how the sentencing decision is being spun by some fuming feminists. It was but one piece in the puzzle the judge was presented with. He merely sized up the entire encounter as best he could, including the accuser's "perceived invitation" and her flirtatiousness, and concluded it was "a case of misunderstood signals and inconsiderate behaviour.” The judge said: “I’m sure whatever signals were sent that sex was in the air were unintentional.”

The feminists insist the judge acted improperly in coming to this conclusion. They would, apparently, lump Mr. Rhode's conviction in the same category as the conviction of the guy who gets a woman stupor-drunk to the point that she can't make a rational decision with the goal of raping the excrement out of her. The refusal to make a distinction between those two convictions is, of course, morally appalling.

The attacks on the judge in this case are breathtaking in their disregard of reason. For example, the charge of "victim blaming," aside from being a tired cliche, is puerile in this case. The same judge being criticized for "victim blaming" actually convicted the man of rape. In passing sentence, the judge did nothing more than assess whether the man has a black heart, similar to the monster who slips a date rape drug in a woman's drink before having his way with her. The judge employed something the banshees attacking him seem wholly incapable of employing: nuance and mercy.

Moreover, the assertion that "no woman asks to be raped" is, of course, correct. If she asked to be raped, it would be consensual sex, not rape. The invocation of this vapid mantra does not advance serious discourse; it merely paints the speaker as an idiot.

The feminists unwittingly have done something else here. By putting pressure on the judge in this case, and by sending a signal to all jurists that men and boys convicted of rape are to be dealt with as harshly as possible regardless of the circumstances, the feminists are only insuring that fewer men and boys will be convicted of rape. These cases are already difficult enough without insisting that it's "all or nothing" -- in close cases, if the judge's options are limited to sending the man to heaven or to hell with no chance to send him to purgatory instead, the judge will choose heaven.

It is well to note that prominent feminists who are members of what can aptly be called the sexual grievance industry insist that false rape accusers should never be subjected to custodial sentences -- see here and here -- regardless of the harm they cause an innocent man or boy. But when it comes to rape, they insist that every incident is sufficiently malevolent to warrant an extended custodial sentence. To them, Mr. Rhodes' conviction is no different than the conviction of a brutal stranger rapist or the conviction of the date rape drug aficionado or the conviction for the "rape" committed by the boy who delayed withdrawing for five seconds after his "victim" told him to stop.

To these angry women, retributive justice means that the punishment need not fit the crime, so long as the criminal has a penis and the crime is rape. By any measure, that is a jurisprudence bordering on pathology.